Updated: Jul 9, 2020
Back in September, I wrote about a Kauai County ordinance banning the production of GMO crops invalidated by the federal district court in Hawaii. Recently a Hawaii County ordinance banning GMO production met a similar fate in Hawai’i Floriculture & Nursery Ass’n v. County of Hawaii, Civ. No. 14-00267, 2014 WL 6685817 (D. Haw. Nov. 26, 2014). Similar to the Kauai County ordinance, the Hawaii County ordinance was preempted under state law and portions of federal law.
Before we look at the case, you may be wondering: “Paul, why are all these challenges coming out of Hawaii?” Well, the answer is climate. Because of Hawaii’s climate, seed companies such as Monsanto and Dow have test plots and develop many varieties in Hawaii. Seed varieties used around the world are first tested in Hawaii. This testing has recently run into opposition from those concerned about cross pollination of local crops and increased use of pesticides from the testing. For more information on this rising opposition, see http://www.capitalpress.com/Research/20140918/gmos-face-the-test-in-hawaii.
The Hawaii County ordinance became effective December 5, 2013 and the plaintiffs filed the lawsuit to invalidate the ordinance in June 2014. Hawaii County’s exempted those producers who had been producing GMO crops from specific locations where GMO crops had been grown prior to December 5, 2013. To get this exemption, the producer had to register with the county and pay a $100 annual fee per location. The ordinance here was only a partial ban and not a full ban as was the case in Kauai County.
So why was the ordinance invalidated? The court here relied on the reasoning from the Kauai County decision (both cases were before the same judge). The court found that the county ordinance was preempted by various state laws. Hawaii law gave the Hawaii Department of Agriculture (HDA) exclusive domain to regulate areas “concerning the introduction, propagation, inspection, and destruction, and control of plants” (at *5). For example, HDA had authority to regulate the introduction of plants into the state and keep out seeds potentially harmful to the state. HDA has the authority to classify certain plants as noxious weeds which have to be controlled or eradicated. This demonstrated to the court that the state had exclusive control over the field to regulate it and left no room for county regulations.
The court also agreed that the ordinance was partially preempted by federal law. Federal law (the Plant Protection Act) limited the ability of counties and cities to regulate the movement of any plant in interstate commerce to prevent the introduction or dissemination of a plant pest or noxious weed. Hawaii County’s partial ban was intended to prevent the dissemination of noxious weed and was preempted under federal law.